Simpkins v. Roberson

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

TIRONNE SIMPKINS, )

)

Plaintiff, )

)

)

VS. ) No. 19-1091-JDT-cgc

)

)

NURSE PRACTITIONER ROBERSON, )

ET AL., )

)

Defendants. )

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING

THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT

ROBERSON AND DIETZ

On May 13, 2019, Plaintiff Tironne Simpkins, who currently is incarcerated at the

South Central Correctional Center in Clifton, Tennessee, filed a pro se complaint pursuant

to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The

complaint addresses events that allegedly occurred while Simpkins was incarcerated at the

Whiteville Correctional Facility (WCF) in Whiteville, Tennessee. (ECF No. 1 at

PageID 4.) The Court issued an order on May 14, 2019, granting leave to proceed in forma

pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act

(PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the Defendants

as WCF Nurse Practitioner First Name Unknown (FNU) Roberson and WCF Doctor

FNU Deitz.

Simpkins alleges that since 2015, he has experienced severe pain in his neck and

back and requested treatment while at the WCF. (ECF No. 1 at PageID 5.) He alleges that

he was given ibuprofen for about a year and x-rayed on January 18, 2018. (Id.)

On June 29, 2018, Nurse Practitioner (NP) Roberson examined Simpkins, but both

Roberson and Dietz refused to give Simpkins the results of his January 18, 2018, x-ray and

allegedly did not treat his pain. (Id.) Simpkins alleges that Roberson and Dietz continued

to refuse him treatment up to the date he filed his complaint. (Id.) In the meantime, the

pain detrimentally affected his “ability to work, walk, climb up and down steps to get to

his housing assignment on the top tier, sleep, exercise, take showers, and perform other

daily activities.” (Id.)

On August 2, 2018, Simpkins filled out another sick-call request, but Roberson and

Dietz allegedly ignored it. (Id. at PageID 6.) About a week later, he requested an extra

mattress and a bottom bunk and a chair to step up and down from his bunk. (Id.) He

alleges that the WCF Medical Department, “by and through” Roberson and Dietz, denied

his requests. (Id.) As of the date the complaint was filed, the defendants allegedly had

refused to see Simpkins for chronic care visits or provide him any treatment whatsoever.

(Id.) He also alleges that his grievances went unanswered. (Id.) He asserts that the WCF

Medical Department retaliated against him by ignoring his sick-call requests and

grievances. (Id. at PageID 7.)

Simpkins seeks compensatory and punitive damages. (Id. at PageID 8.)

The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or

(2) seeks monetary relief from a defendant who is immune from such

relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may

be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556

U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court

accepts the complaint’s “well-pleaded” factual allegations as true and then determines

whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations

“are not entitled to the assumption of truth,” and legal conclusions “must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.

R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’

rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at

383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.

App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for

failure to comply with “unique pleading requirements” and stating “a court cannot ‘create

a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

Simpkins filed his complaint pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of

rights secured by the “Constitution and laws” of the United States (2) committed by a

defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970).

To the extent Simpkins intends to assert an official-capacity claim against the

Defendants, his claim is against their employer, CoreCivic, a private company that

manages the WCF. “A private corporation that performs the traditional state function of

operating a prison acts under color of state law for purposes of § 1983.” Thomas v. Coble,

55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810,

814 (6th Cir. 1996)). The Sixth Circuit has applied the standards for assessing municipal

liability to claims against private corporations that operate prisons or provide medical care

or food services to prisoners. Id. at 748-49; Street, 102 F.3d at 817-18; Johnson v. Corr.

Corp. of Am., 26 F. App’x 386, 388 (6th Cir. 2001); see also Eads v. State of Tenn., No.

1:18-cv-00042, 2018 WL 4283030, at *9 (M.D. Tenn. Sept. 7, 2018). To prevail on a

§ 1983 claim against CoreCivic, a plaintiff “must show that a policy or well-settled custom

of the company was the ‘moving force’ behind the alleged deprivation” of his rights.

Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011). Simpkins, however,

does not allege that he is being denied medical treatment because of an unconstitutional

policy or custom of CoreCivic.

The Court reviews claims regarding the denial of medical care under the Eighth

Amendment, which prohibits cruel and unusual punishments. See generally Wilson v.

Seiter, 501 U.S. 294, 297 (1991). Under Estelle v. Gamble, 429 U.S. 97, 104 (1976),

“deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary

and wanton infliction of pain” . . . proscribed by the Eighth Amendment.” However, not

“every claim by a prisoner that he has not received adequate medical treatment states a

violation of the Eighth Amendment.” Id. at 105. To state a cognizable claim, “a prisoner

must allege acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs. It is only such indifference that can offend ‘evolving standards of

decency’ in violation of the Eighth Amendment.” Id. at 106.

An Eighth Amendment claim consists of both objective and subjective components.

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992);

Wilson, 501 U.S. at 298. The objective component of an Eighth Amendment claim based

on a lack of medical care requires that a prisoner have a serious medical need. Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004); Brooks v. Celeste, 39 F.3d 125,

128 (6th Cir. 1994). “[A] medical need is objectively serious if it is ‘one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay

person would readily recognize the necessity for a doctor’s attention.’” Blackmore,

390 F.3d at 897; see also Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005).

To establish the subjective component of an Eighth Amendment violation,

a prisoner must demonstrate that the official acted with the requisite intent, that is, that he

had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson,

501 U.S. at 302-03. The plaintiff must show that the prison officials acted with “deliberate

indifference” to a substantial risk that the prisoner would suffer serious harm. Farmer,

511 U.S. at 834; Wilson, 501 U.S. at 303; Dominguez v. Corr. Med. Servs., 555 F.3d 543,

550 (6th Cir. 2009); Woods v. Lecureux, 110 F.3d 1215,1222 (6th Cir. 1997). “[D]eliberate

indifference describes a state of mind more blameworthy than negligence.” Farmer,

511 U.S. at 835. A prison official cannot be found liable under the Eighth Amendment

unless he subjectively knows of an excessive risk of harm to an inmate’s health or safety

and disregards that risk. Id. at 837.

Simpkins’s allegations satisfy both components of an Eighth Amendment claim. He

alleges that his back and neck pain is serious enough that it affects every aspect of his daily

life, including working, walking, climbing stairs, sleeping, exercising, and showering. Pain

that prevents a person from carrying on with his daily activities “would be ‘easily

recognized as needing a doctor’s attention’” and therefore qualifies as a serious medical

need. Gunther v. Castineta, 561 F. App’x 497, 501 (6th Cir. 2014); see Blackmore,

390 F.3d at 897. Simpkins also alleges that Roberson and Dietz have examined him and

are aware of the pain in his back and neck yet have provided no medical treatment.

Although he alleges that he was x-rayed in January 2018, he says Roberson and Dietz have

refused to discuss with him the results of the x-ray or provide treatment accordingly.

Simpkins sufficiently alleges that Roberson and Dietz knew of the excessive and on-going

risk to Simpkins’s health and disregarded it. His Eighth Amendment claim against both

Defendants will proceed.

To the extent Simpkins claims the WCF grievance process was inadequate, he fails

to state a valid claim under § 1983. “There is no inherent constitutional right to an effective

prison grievance procedure.” See LaFlame v. Montgomery Cnty. Sheriff’s Dep’t,

3 F. App’x 346, 348 (6th Cir. 2001) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th

Cir. 1996)). A § 1983 claim therefore cannot be premised on contentions that the grievance

procedure was inadequate. Id.

The Court reviews Simpkins’s retaliation claim under the First Amendment.

See Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (“Retaliation on the basis of

a prisoner’s exercise of his First Amendment rights violates the Constitution.”). A claim

of retaliation has three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in that conduct; and (3) there is a causal connection

between elements one and two—that is, the adverse action was motivated at

least in part by the plaintiff’s protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). “Protected conduct,

for the purposes of a First Amendment retaliation claim, encompasses a prisoner’s efforts

to access the courts in . . . civil rights claims.” Bell v. Johnson, 308 F.3d 594, 607 (6th Cir.

2002); see Thaddeus-X, 175 F.3d at 391. Filing a grievance also is protected conduct. Hill,

630 F.3d at 472. “[T]he plaintiff must be able to prove that the exercise of the protected

right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct.”

Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

Simpkins alleges that he filed numerous grievances at WCF about his inadequate

medical treatment. However, the only adverse action he alleges is inaction—he alleges

that he received no response to his grievances and no treatment. Simpkins asserts that this

inaction was in retaliation for the grievances he filed. Inaction in response to a grievance

does not qualify as an “adverse action” for purposes of a First Amendment retaliation

claim. See, e.g., Rhodes v. Robinson, 399 F. App’x 160, 163 (9th Cir. 2010); Houston v.

Schriro, No. 11 CIV. 7374 HB, 2013 WL 4457375, at *10 (S.D.N.Y. Aug. 20, 2013);

Young v. Wexford Health Sources, No. 10 C 8220, 2012 WL 621358, at *6 (N.D. Ill.

Feb. 14, 2012); Malone v. Rangel, No. 1:09CV00505SKO PC, 2010 WL 3001396, at *3

(E.D. Cal. July 29, 2010) Lazarus v. Nimcheski, No. CIV. 11-00279 SOM, 2011 WL

1831742, at *5 (D. Haw. May 11, 2011) (citing McCabe v. McComber, No. 08-00112 JMS,

2008 WL 4133186 *9 (D. Haw. Sept. 8, 2008)). Simpkins cannot satisfy the second

element and therefore fails to state a First Amendment claim of retaliation.

In conclusion, the Court DISMISSES Simpkins’s First Amendment retaliation

claim for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). His Eighth Amendment claim against for lack of

adequate medical care will proceed.

It is ORDERED that the Clerk shall issue process for Defendants Nurse Practitioner

FNU Roberson and Dr. FNU Dietz and deliver that process to the U.S. Marshal for service.

Service shall be made on Defendants Roberson and Dietz pursuant to Federal Rule of Civil

Procedure 4(e) and Tennessee Rules of Civil Procedure 4.04(1) and (10) by registered or

certified mail or personally if mail service is not effective. All costs of service shall by

advanced by the United States.

It is further ORDERED that Simpkins shall serve a copy of every subsequent

document he files in this case on the attorneys for Defendants Roberson and Dietz or on

Defendants Roberson and Dietz personally if they are unrepresented. Simpkins shall make

a certificate of service on every document he files. Simpkins shall familiarize himself with

the Federal Rules of Civil Procedure and this Court’s Local Rules.1

Simpkins is reminded that he must promptly notify the Clerk of any change of

address or extended absence. Failure to comply with these requirements, or any other order

of the Court, may result in the dismissal of this case without further notice.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

1 A copy of the Local Rules may be obtained from the Clerk or on the Court’s website at

https://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf.